State Legitimacy and Failure in International Law

An important new contribution to the literature on failed states is this new book by Mario Silva entitled StateLegitimacy and Failure in International Law, published by Brill Nijhoff.

Mario Silva served for many years as a Member of Parliament in Canada. Last year, he was chair of the The International Holocaust Remembrance Alliance. The book is based upon the doctoral thesis that he successfully defended at the Irish Centre for Human Rights.

Doctoral fellowships at Middlesex University

My University is offering doctoral fellowships for students in a range of areas, including international human rights law and international criminal law. There are very attractive fellowships that provide funding for the degree, including both tuition and subsistence. I would encourage readers of the blog to apply, and to spread to word to other who may be interested.
My personal hope is that one or two of these fellowships will be awarded to a student who will complete the degree under my supervision.
Note that the deadline for applications is 14 March. For more information: http://www.mdx.ac.uk/research/applications/fees/bursaries/law.aspx.

Moratorium on death penalty in Washington State

Further evidence of the decline in capital punishment in the United States comes with the announcement by Governor Inslee of Washington State of a moratorium on capital punishment.

According to a statement by the International Commission against the Death Penalty, Governor Inslee said the moratorium would last for as long as he is in office. Following months of review including meetings with victims’ families, law enforcement experts and prosecutors, he concluded that there are ‘too many doubts’ about capital punishment. According to the Governor, the capital punishment system ‘does not deter crime, costs citizens millions of dollars more than life in prison without parole’, is ‘unequally applied’ and ‘exposes families to multiple decades of uncertainty’.

Governor Inslee told reporters that he hopes the moratorium will allow Washington State to ‘join a growing national conversation about capital punishment’, and that he would support decision by lawmakers for a permanent ban on the death penalty, the statement said.

‘This is significant progress and we congratulate Governor Inslee for his leadership in the decision to declare a moratorium of capital punishment in Washington State. It is another sign that the death penalty is steadily retreating in the US as more states bring their justice systems into the modern era’, said Federico Mayor, President of the International Commission against the death penalty.

Governor Inslee said that in the 33 years since Washington State enacted its capital punishment laws, 60% of 32 people sentenced to death have had their sentences overturned. ‘When the majority of death penalty sentences lead to reversal, the entire system must be called into question’, he said.

The importance of such developments cannot be underestimated. According to the case law of the Supreme Court of the United States, the ‘evolving standards of decency’ that govern interpretation of the eighth amendment are to be assessed with reference to developments in the law and practice of the States. In 2005, the Supreme Court declared the juvenile death penalty to be unconstitutional based upon a discernable pattern involving a relatively modest number of States.

Prosecutor Applies to Reverse Final Acquittal of Perišić

In February 2013, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia ‘enter[ed] … a verdict of acquittal’ in the case of Momčilo Perišić. The Statute of the International Criminal Tribunal for the former Yugoslavia provides for appeal of a conviction, a procedure that was introduced in order to comply with article 14(5) of the International Covenant on Civil and Political Rights (‘Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’) It does not allow reconsideration of an acquittal that has become definitive following an Appeals Chamber decision because of a changed interpretation of the law.

A few days ago, the Prosecutor of the Tribunal applied for ‘reconsideration’ of the decision to acquit Perišić. According to a Statement issued by the Office of the Prosecutor,

This motion was filed, after careful deliberations, by my Office as a direct consequence of the Šainović  Appeal Judgement delivered on 23 January 2014. In that Judgement, the ICTY Appeals Chamber unequivocally overturned the Perišić Appeal Judgement’s flawed holding that “specific direction” is an element of aiding and abetting liability. It was on the basis of this ‘specific direction’ requirement that the aiding and abetting convictions entered by the Trial Chamber were reversed and Mr. Perišić was erroneously acquitted on appeal.

Rule 119 of the Rules of Procedure and Evidence allows for ‘review’ of a decision by the Appeals Chamber: ‘Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place.’

But the Prosecutor is not claiming that any ‘new fact’ has been discovered. Rather, the Prosecutor is arguing that the law has changed as a result of the legal basis of the acquittal of Perišić being ‘unequivocally overturned’. But was it?

First, there was a dissenting opinion in Šainović. Under the circumstances, the word ‘unequivocal’ is probably not appropriate. Second, Judge Ramaroson, who sat in both Perišić and Šainović agreed with the majority judgment in both cases. I would not use the word ‘unequivocal’ to describe such a strange situation. Judge Ramaroson might have enlightened us with a separate opinion to explain the change of heart. Third, the Appeals Chamber cannot ‘overturn’ the Appeals Chamber. It may seem paradoxical, but by refusing to follow the funding in Perišić the judges in Šainović may inadvertently have undermined the authority of their own judgment. Who is to say that yet another five-judge panel of the Appeals Chamber will not ‘overturn’ Šainović, perhaps restoring Perišić or possibily setting out a third vision of aiding and abetting? It seems more accurate to describe what has happened is that four judges of the Appeals Chamber disagree with four other judges of the Appeals Chamber (really, three judges, because one of them disagrees with herself).

The real problem with the Prosecutor’s motion concerns the rights of the accused. According to article 14(7) of the International Covenant on Civil and Political Rights, ‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’ The same rule is formulated slightly differently in article 4 of Protocol No. 7 to the European Convention on Human Rights:

1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of the State.

2. The provisions of the preceding paragraph shall not prevent the re-opening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15 of the Convention.

Can the Prosecutor argue that when Perišić was acquitted by the Appeals Chamber there was ‘a fundamental defect in the proceedings’? There is not much in the way of judicial interpretation on this expression. Recently a Chamber of the European Court of Human Rights held that there was such a ‘fundamental defect’ where an acquittal was based upon an amnesty (Marguš v. Croatia, no. 4455/10, § 74, 13 November 2012). The case is currently pending before the Grand Chamber. But four judges disagreeing with four judges cannot be described as a ‘fundamental defect in the proceedings’.

The rule against double jeopardy (ne bis in idem) is part of a larger norm known by the term res judicata. It is almost certainly a general principle of law in the sense this expression is employed by article 38 of the Statute of the International Court of Justice. There is something profoundly troublesome about reconsideration of a final acquittal because a new judicial finding concerning legal interpretation is at variance with an earlier one.

Against the right of the accused to protection against such double jeopardy, the Prosecutor invokes the rights of victims to have justice done. He says that ‘[r]econsidering the Perišić Appeal Judgement will help secure justice for the victims, which is the key objective of my Office, the Tribunal and international criminal justice as a whole.’

But fair proceedings should also be a key objective of the Prosecutor. There is something profoundly unfair about the suggestion that an acquittal, decided by four judges of an Appeals Chamber, can be reversed a year later because four other judges adopt a different interpretation of the law.

The mantra of ‘justice for the victims’ should not be used to trump the rights of the accused in such circumstances. As a result of these controversial decisions, not to mention other bizarre developments like the statement of Judge Harhoff, his removal as a judge, and the replacement of a judge in a pending trial well into the deliberation stage, the legacy of the International Criminal Tribunal for the former Yugoslavia has been tarnished. Reconsideration of an acquittal because there of a change in judicial interpretation risks causing further damage to the reputation of this troubled institution.

Submission to the International Criminal Court on British Abuse of Prisoners in Iraq

The European Centre for Constitutional and Human Rights and Public Interest Lawyers have filed a communication with the Prosecutor ofthe International Criminal Court concerning war crimes committed by British soldiers in Iraq.

Eight years ago, the previous Prosecutor of the International Criminal Court rejected communications concerning British conduct in Iraq. He cited the relatively small number of allegations as an indication that the situation was not of sufficient gravity. There was also the suggestion that the British justice system would adequately address the allegations.

The new communication shows that the numbers of violations are much larger than those considered by the Prosecutor in 2006. Hundreds of examples of prisoner abuse, including several murders of persons in custody, are documented in the submission. It also points to the inadequacies of the British justice system in bringing those responsible to justice. There have been public inquiries in the United Kingdom as well as out of court settlements for the victims, who have in some cases been successful at the European Court of Human Rights. But there is almost nothing in terms of prosecution before the criminal courts.

The communication to the Court insists upon pursuing this matter to higher levels of responsibility within the civilian and military hierarchy.

This communication is a test for the Court. It has shown great eagerness to deal with situations of serious violations of international law in African countries but considerable reluctance to proceed elsewhere. The Court offers a variety of rationalisations, none of them particularly convincing. The impression remains of a double standard, driven out of concerns that an investigation that touches on the interests of powerful countries is simply too ambitious for the young, fledgling institution. In the long run, however, a failure to address the challenges posed by situations like prisoner abuse in Iraq will cause great damage to the Court.

The report notes a pattern of prisoner abuse by British forces dating back decades, to the anti-colonial struggles in Palestine, Cyprus, Kenya and many other countries. In the early 1970s, Ireland took the United Kingdom to the European Court of Human Rights about ill treatment of prisoners in Northern Ireland. At the time, the Prime Minister and the Attorney-General both pledged that such methods would be abandoned. But it seems the British army didn't destroy the manual on how to torture detainees. They only put it back on the shelf. When the United Kingdom invaded Iraq in 2003, the British authorities dusted off their old copy of the torture manual and went back to their old tricks.

There was much media coverage and commentary on the submission to the International Criminal Court. See, for example, the op-ed by Clive Baldwin of Human Rights Watch in the Independent: “Time to Properly Investigate UK War Crimes in Iraq”. 

Also:

Chantal Meloni in Opinio Juris: “Can the ICC investigate UK higher echelons’ command responsibility for torture committed by the armed forces against Iraqi detainees?”.

Marc Kersten: Iraq’s long shadow of injustice haunts Britain, Foreign Policy, 15 January 2014

The Independent: Exclusive: Devastating dossier on ‘abuse’ by UK forces in Iraq goes to International Criminal Court, 12 January 2014

The Guardian: British politicians and generals targeted in Iraq abuse case, 12 January 2014

Sky News: Iraq: Government Rejects Torture Allegations, 12 January 2014

Russia Today TV: 'Beatings & Burning': Dossier accusing UK of Iraq war crimes goes to ICC, 13 January 2014

Süddeutsche Zeitung: Anzeige wegen Folter während des Irak-Kriegs. Britische Soldaten sollen Kriegsverbrechen begangen haben, 10 January 2014

Das Erste: Großbritannien: Folter im Irak (Weltspiegel), 12 January 2014

FAZ: Großbritannien und die Foltervorwürfe: „Britische Streitkräfte sind die besten der Welt“ , 13 January 2014

Authoritative Legal Pronouncements from the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia

As the International Criminal Tribunal for the former Yugoslavia enters its golden years, sharp differences of opinion have arisen amongst the judges, manifested both in judgments. Some rather unhappy extramural commentary by one judge that that seems to have been provoked by some of this tension led to his removal and created a major problem for the completion of a major trial.

Now we have the unprecedented situation where differently constituted forms of the Appeals Chamber issue opinions on an important matter of law that are radically different. Eleven months ago, in Perisić, to much controversy, an Appeals Chamber presided by Judge Meron and consisting of judges Agius, Liu, Ramaroson and Vaz held that ‘specific direction’ was an element of aiding and abetting. In other words, it was not enough for an accused to provide assistance to others who were perpetrating international crimes with knowledge that they were doing so. The assistance needed to be specifically directed to the perpetration of the offence. Judge Liu dissented, and discontent with the ruling was also expressed in a subsequent decision by a member of a Trial Chamber.

Last week, in Šainović et al., the Appeals Chamber, presided by Judge Liu and consisting of judges Güney, Pocar, Ramaroson and Tuzmukhamedov, held that last year’s decision was erroneous. It said that ‘specific direction’ was not an element of liability based upon aiding and abetting. Judge Tuzmukhamedov did not endorse the majority view, stating that it was unnecessary to resolve the issue and expressing concern about the instability in the case law that would result. He wrote:

 

45. While it is within the Appeals Chamber’s discretion to consider legal matters of general importance to the Tribunal’s case law, I think that this exceptional measure should not be resorted to here. It may not be possible to completely avoid disagreement between differently constituted benches of the Appeals Chamber over certain legal or factual issues, especially in the absence of a higher unified instance. However, it would be prudent to exercise some restraint in addressing such rifts in the jurisprudence of a respectable and authoritative judicial institution so as to preserve as much as possible, judicial harmony in the case law that impacts the development of international criminal law and international humanitarian law, as well as legal certainty, stability and predictability, in particular, for the benefit of the parties to proceedings before the Tribunal.

The analysis of the Appeals Chamber in the two conflicting decisions is quite different in terms of the focus. In Perisić, the Appeals Chamber concentrated on the case law of the Appeals Chambers of the Tribunals, explaining that the significance of ‘specific direction’ had been present since the earliest rulings but that it had not been consistently expressed. Thus, the decision sought to provide coherence in the Court’s case law. In Šainović et al., the Appeals Chamber looked largely at the case law of the post-Second World War period for authority, devoting a great deal of attention to the rulings of British military tribunals. It also considered the issue from the standpoint of comparative criminal law, claiming this is justified by ‘the doctrine of general principles of law recognised by nations’ (para. 1643, a curious phrase).

Between Perisić and Šainović et al., one of the more interesting manifestations of the debate about ‘specific direction’ appeared in a judgment of the Supreme Court of Canada, issued in July 2013. Ezokola v. Minister was a refugee case that concerned the degree of involvement in atrocities of an asylum seeker who had been a diplomat for the Democratic Republic of the Congo. The Court noted Perisic, and although it did not endorse the judgment explicitly it held that an overly broad notion of aiding and abetting liability could have perverse consequences in terms of fulfilling the principles of the Refugee Convention, which denies its benefits where there are ‘serious reasons’ to believe that the applicant has committed war crimes or crimes against humanity.

But the most dramatic reaction to Perisić was by the Appeals Chamber of the Special Court for Sierra Leone in the Charles Taylor appeal. It dismissed the ruling of the Appeals Chamber as unconvincing. Arguably, had it followed Perisić, Taylor would quite probably have been acquitted. In Šainović et al., the Appeals Chamber makes only very summary reference to the judgment of the Appeals Chamber of the Special Court for Sierra Leone in Taylor.

When the International Criminal Tribunal for the former Yugoslavia was established in 1993, the rationale for providing an Appeals Chamber was to ensure respect for the right to appeal from a criminal conviction, set out in article 14(5) of the International Covenant on Civil and Political Rights. Here is paragraph 114 of the Secretary-General’s report, which provided the explanation for the provisions of the Statute of the Tribunal that was subsequently adopted by the Security Council:

The Secretary-General is of the view that the right of appeal should be provided for under the Statute. Such a right is a fundamental element of individual civil and political rights and has, inter alia, been incorporated in the International Covenant on Civil and Political Rights. For this reason, the Secretary-General has proposed that there should be an Appeals Chamber.

But a year later, when the International Criminal Tribunal for Rwanda was created, the Security Council provided for a common membership of the Appeals Chamber of the two Tribunals, essentially making it a unified Appeals Chamber in fact if not in name. One of the reasons was to ensure consistent case law, it being assumed that the Trial Chambers of both Tribunals would follow precedents set by the Appeals Chambers.

Still later, when the United Nations was considering establishment of the Special Court for Sierra Leone, there was discussion about whether to follow the earlier approach and subject it as well to the Appeals Chamber of the ad hoc Tribunals. The Secretary-General wrote that ‘[w]hile in theory the establishment of an overarching Appeals Chamber as the ultimate authority in matters of interpretation and application of international humanitarian law offers a guarantee of developing a coherent body of law, in practice, the same result may be achieved by linking the jurisprudence of the Special Court to that of the International tribunals, without imposing on the shared Appeals Chamber the financial and administrative constraints of a formal institutional link’.  The result was a provision in the Statute of the Special Court for Sierra Leone requiring that the Appeals Chamber of that institution should be ‘guided’ by the decisions of the Appeals Chambers of the ad hoc Tribunals, a provision that it essentially disregarded in the Charles Taylor appeal.

One thing is certain. The desire of the Secretary-General for ‘developing a coherent body of law’ is far from being fulfilled, at least in this area of the law. As mentioned above, the scope of aiding and abetting has ramifications that go well beyond the frame of the international criminal tribunals. These issues are very relevant in refugee determinations, not to mention litigation involving liability under legislation like the Alien Tort Claims Act. Moreover, the International Court of Justice has also implied, in the 2007 Bosnia v. Serbia judgment, that the pronouncements of the international criminal tribunals on matters within their expertise constitute authoritative statements of the law. But with such a fragmented message, where is the authority?

There is a tendency to view the holdings of the Appeals Chambers of the international criminal tribunals – including the International Criminal Court – as being more authoritative and compelling. We make the analogy with the prestigious status of higher courts and tribunals within the national system. One important difference with national systems, however, is that appointment to the supreme, appeals and constitutional courts is reserved to the most distinguished jurists, generally those who are older and more experienced and who have convinced those who make the appointments of their abilities, knowledge, fairness and good judgment. At the international criminal tribunals, the distribution of judges amongst the chambers is a matter for them to decide internally. It is an opaque process without apparent legal rules or expectations. This is not to suggest that the judges of the Appeals Chambers are not fine jurists. But then, so are the judges of the Trial Chambers. The notion of hierarchy that features in national systems is not present in the same way as it is in national courts.

The situation at the international criminal tribunals is rather more like what we find at the European Court of Human Rights, where cases are usually decided by a Chamber of seven judges and a Grand Chamber of 17 judges. What makes the Grand Chamber more authoritative? Only that it is larger. A nine-judge majority of a Grand Chamber trumps a unanimous seven-judge Chamber. It’s all about the numbers rather than the quality of the rulings. Of course, that’s not exactly the problem with ‘specific direction’ where it looks like the judges of the Tribunals are split roughly 50/50.

Two years ago, there was a fine conference held in The Hague that confirmed the ‘legacy’ of the International Criminal Tribunal for the former Yugoslavia. Its record was impressive, its accomplishments numerous, its jurisprudence compelling. The judges and the others who worked within the Tribunal seemed proud of what had been achieved. All that was needed was to wrap up the remaining cases. There was a sense of a job well done.

Who would have then expected the chaos that seems to have taken over. What new surprises await us at this troubled institution?

What’s in a Name?

The refusal by Italian civil authorities to register a child using the family name of the mother and not the father, in a case where both parents were in agreement with such a course of action, has been held to be a violation of the European Convention on Human Rights in a decision issued yesterday by the European Court of Human Rights: Cusan and Fazzo v. Italy.

The Court applied article 14, which prohibits discrimination based upon various grounds including sex, in conjunction with article 8, which enshrines the right to private and family life.

There is no text of Italian law that requires ‘legitimate children’ to be registered with the surname of their father, but the local Italian courts had said that the requirement corresponded to a principle that was well-entrenched in the social conscience and history of Italy. Higher courts in Italy had held this was not a customary rule. The Constitution Court went so far as to say the rule was the result of a patriarchal conception of the family and the powers of the husband with its roots in Roman law. It said it was not compatible with the constitutional principle of equality of men and women. But the Constitution Court was unable to solve the problem, claiming this was a matter for the legislature, hence recourse to the European Court.

In yesterday’s ruling, the European Court of Human Rights said that parents, who are in principle equal, were not treated equally, because the father could give his surname to the child but not the mother.

Dr Lars Waldorf

From left, myself, Lars, Mark Drumbl (on the screen) and Shane Darcy.

Lars Waldorf successfully defended his doctoral thesis, entitled Mass Justice for Mass Atrocity: Transitional Justice and Illiberal Peace-Building in Rwanda, at the National University of Ireland Galway yesterday. It was a brilliant defence. The examiners didn’t even propose to adjourn and deliberate and simply told him outright after his presentation and some discussion that he had succeeded. The external examiner was Prof. Mark Drumbl of Washington & Lee University, who participated by videoconference. The internal examiner was Dr. Shane Darcy. The panel was chaired by Dr. Noelle Higgins, who is not shown in the photo (she took it!). I was the supervisor of the thesis. Lars is a lecturer at the University of York, in the UK. Congratulations, Lars.

The slow demise of capital punishment.

See the recent editorial in The New York Times about the 'slow demise of capital punishment'. 'Slow' is a very subjective notion, and from the perspective of the United States the process may appear to be taking a long time. That's partly because the United States once appeared to be a pioneer on the subject, in the late 1960 and early 1970s, when the practice virtually stopped and the Supreme Court came painfully close to judicial abolition. Later this all got reversed for a couple of dark decades, but at a time when the rest of the world seemed to keep moving forward, and rapidly, on the subject.
Thanks to Sir Nigel Rodley.